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Hamilton v. State

United States District Court, D. Hawaii

August 15, 2016

COLLEEN MICHELE HAMILTON, Plaintiff,
v.
STATE OF HAWAII, Defendant.

          ORDER DISMISSING CASE AND DENYING (1) MOTION FOR APPOINTMENT OF COUNSEL, (2) MOTION TO PROCEED WITHOUT PAYMENT OF FEES, (3) MOTION TO EXPEDITE APPEAL, AND (4) REQUEST FOR CERTIFICATE OF APPEALABILITY

          DERRICK K. WATSON DISTRICT JUDGE

         INTRODUCTION

         On July 1, 2016, Plaintiff Colleen Michele Hamilton, proceeding pro se, filed this civil action against the State of Hawaii alleging that her federal rights were violated in Hawaii state court proceedings. The complaint was not accompanied by a filing fee or an application to proceed in forma pauperis (“IFP”). On July 5, 2016, the Court ordered Hamilton to either pay the statutory filing fee or submit a completed IFP application, and cautioned her that the failure to comply with the Court’s order would result in the automatic dismissal of this action. Hamilton did not comply. Instead, she filed (1) a series of procedural motions that have each been denied, and (2) a premature notice of appeal. Accordingly, this action is dismissed for failure to comply with the Court’s prior order.

         Moreover, because she is not entitled to the relief she seeks, the Court denies Hamilton’s motion seeking the appointment of counsel and a certificate of appealability, to expedite her appeal, and to proceed without prepayment of fees on appeal. Dkt. No. 14.[1]

         DISCUSSION

         I. The Case Is Dismissed

         The Court first addresses Hamilton’s failure to comply with the Court’s July 5, 2016 Deficiency Order. See Dkt. No. 3. The Court specifically advised Hamilton that this case would be automatically dismissed if she failed to either pay the required filing fee or submit a completed IFP application within 30 days. See Dkt. No. 3. The Court explained the statutory filing requirements as follows:

Parties instituting a civil action, suit or proceeding in a United States District Court, other than a writ of habeas corpus, must pay a filing fee of $350.00 and an administrative fee of $50.00. See 28 U.S.C. § 1914(a) and District Court Miscellaneous Fee Schedule, ¶ 14 (effective December 1, 2013). This administrative fee does not apply to applications for writ of habeas corpus or to persons who are granted in forma pauperis status under 28 U.S.C. § 1915. An action may only proceed without concurrent payment of the filing fee if the party is granted leave to proceed in forma pauperis (“IFP”). 28 U.S.C. § 1915(a); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

Dkt. No. 3.

         The Court cautioned Hamilton that the failure to submit the required fee or a completed IFP application “will result in AUTOMATIC DISMISSAL of this action for failure to prosecute or otherwise follow a court order. See Fed. R. Civ. P. 41(b); Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995)(stating that the district court may dismiss a complaint for failure to pay partial filing fee); In re Perroton, 958 F.2d 889, 890 (9th Cir. 1992) (affirming dismissal of appeal of pro se litigant for failure to pay required filing fees).” Id. The Deficiency Order clearly repeated these instructions to Hamilton:

Plaintiff is GRANTED thirty days to either pay the $400.00 filing fee or submit a completed and executed application to proceed in forma pauperis on the forms provided by the court with this Order. The application must bear the docket number assigned to this case. Failure to timely file an in forma pauperis application or the statutory filing fee within thirty days of the date of this Order will result in AUTOMATIC DISMISSAL of this action.

Dkt. No. 3.

         Courts have the authority to dismiss actions for failure to prosecute or for failure to comply with court orders. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962) (“The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.”). Before dismissing an action for failure to prosecute, the Court must weigh: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” Id. at 642 (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

         Upon careful consideration of these factors, the Court concludes that dismissal is warranted under the circumstances in light of (1) Hamilton’s failure to either pay the statutory filing fee or submit an IFP application, and (2) her election to file a notice of appeal. The Court attempted to avoid outright dismissal of this action by instructing Hamilton of the deficiencies in her filing. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (“The district court need not exhaust every sanction short of dismissal before finally dismissing a case, but must explore possible and meaningful alternatives.”). Alternatives to dismissal are not adequate here, given Hamilton’s voluntary failure to comply with the Court’s clear order, and election to take her case ...


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